Excerpt:.....- intention of donor is to confer same rights as would have devolved upon donee on inheritance of property - property ancestral in nature and succession to be governed by section 6. - - murugnatha, (air 1953 sc 495) the supreme court held as follows (a1 page 500) :as the law is accepted and well settled that a mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. if, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and..........to avoid the gift deeds because of the bar of limitation. the fact, however, remains that the gift in arku ram's favour was made by a paternal ancestor, smt. janki and was of grand paternal property. in c. n. arunachala mudaliar v. c. a. murugnatha, (air 1953 sc 495) the supreme court held as follows (a1 page 500) : 'as the law is accepted and well settled that a mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. if there are express provisions to that effect either in the deed of gift or a will, no.....

Judgment:

Deoki Nandan, J.

1. This is a plaintiff's second appeal from the preliminary decree in a suit for partition. The plaintiff had claimed his share in the property to be 9/40. By its preliminary decree dated 31st July, 1967 the trial court decreed the plaintiff's share to be 9/40 as claimed by him, but on appeal by some of the defendants, the lower appellate court held that the plaintiff's share was only 1/8 and that he was liable to pay Rs. 1062.50 p. to the defendant-appellants before it, as his share towards the consideration payable for the re-purchase of immovable properties, which could be adjusted against the value of the properties to be allotted against his share at the partition. The plaintiff-appellant has prayed for restoration of the trial court's decree declaring his share to be 9/40.

2. The property in suit belonged to one Ram Chandra and has been found to have been his self acquired property. That finding has not been questioned before me. Ram Chandra had a brother Chiman Lal and a sister Janki. Chiman Lal had a son Raghubar. Arku Ram was Raghubar's son. The plaintiff Ratan Lal is one of the sons of Arku Ram. Smt. Daropadi Bai, defendant-respondent No. 3 is the widow of Arku Ram. Ramesh Chandra and Mahesh Chandra defendant respondents 1 and 2 respectively, are the other sons of Arku Ram; and Smt. Kamla Bai, Smt. Mithla Bai, Smt. Vimla Bai and Smt. Sukriti Bai, defendants Nos. 4, 5, 6 and 7 respectively are the daughters of Arku Ram. After the death of Ram Chandra, his widow Parma Bai made an absolute gift of the property in question by deed dated 28th April, 1905 (Ex. 14) to Ram Chandra's sister Smt. Janki. Smt. Padma Bai died in 1906. Smt. Janki continued to possess the property until 15th May, 1915 when she made a gift of the same by deed of that date (Ex. A-1) to Raghubar's son Arku Ram, and thereafter died in the year 1916.

3. Arku Ram died on 21st February, 1962 and the answer to the question whether the plaintiff's share is 9/40 or 1/8, turns on the answer to the question whether the property so received by Arku Ram from his paternal grand aunt, Smt. Janki, by the medium of the gift deed dated 15th May, 1915 (Ex. A-1) was his separate property, or ancestral qua his male issue. If it was the separate property of Arku Ram, the plaintiff's share therein, would be that taken by succession, on Arku Ram's death in the year 1961, under Section 8 of the Hindu Succession Act read with Class I of the Schedule and Ss. 9, 10 and 19 thereof, which works out to 1/8, as pleaded by the defendant-respondents; but in case the property was ancestral in the hands of Arku Ram qua his male issue, the plaintiff's share would be that taken by deemed partition immediately before the death of his father, under Section 6 of the Act i.e. l/5th plus l/8th of the father's 1/5th share, total 9/40 of the whole.

4. The first significant fact to be noticed is that the property came to Arku Ram from a paternal ancestor, and it cannot be disputed that if it had been inherited by Arku Ram's father Raghubar on the death of Ram Chandra's widow Smt. Parma Bai, and by Arku Ram on Raghubar's death, the property would have been ancestral in his hands.

On Ram Chandra's death the property vested in his widow Smt. Parma Bai as widow's estate. She could not have made an absolute gift of the property to Ram Chandra's sister Smt. Janki. Nevertheless she did make the gift. Smt. Janki was accordingly liable to be divested of the property at the instance of the reversioners. The presumptive rever-sioner could even obtain a declaration during the lifetime of Smt. Parma Bai that the gift made by her in Smt. Janki's favour was invalid and could not enure beyond the lifetime of Smt. Parma Bai, and such a declaration could have been enforced by the actual reversioner on the death of Smt. Parma Bai when the succession opened. Nevertheless, the reversioner, who in this case, was Raghubar, could also have filed a suit for possession against Smt. Janki at any time within 12 years from the date of the death of Smt. Parma Bai. He did not do so, but according to the finding of the lower appellate court in the course of discussion under point No. 6, he acquired the property by gift in favour of his son Arku Ram. He had no need to file a suit for possession as Smt. Janki Bai voluntarily gave possession over the property to his son Arku Ram. The evidence of the subsequent dealings with the property bv Raghubar himself, as Arku Ram was a minor, (vide Ex. 5 dated 25th April, 1920 and other documents), shows that Raghubar treated the property as family property and not as the separate property of Arku Ram minor, of whom he was the natural guardian.

5. Both the courts below have held the two gifts to be invalid, but the lower appellate court had held that they were not avoided by the reversioners entitled to do so, at whose instance alone they were voidable; and instead of avoiding them, Raghubar acquiesced in the gifts in favour of his son Arku Ram. The gift deeds were binding on him, and Arku Ram acquired a valid title under the same. At any rate, the lower appellate court also held, the defendants who were the appellants before it had no right to avoid the gift deeds because of the bar of limitation. The fact, however, remains that the gift in Arku Ram's favour was made by a paternal ancestor, Smt. Janki and was of grand paternal property. In C. N. Arunachala Mudaliar v. C. A. Murugnatha, (AIR 1953 SC 495) the Supreme Court held as follows (a1 page 500) :

'As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed of gift or a will, no difficulty is likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction .....'

6. Let me look at the gift deed (Ext. A-1) dated 14th May, 1915, and construe its language in the context of the surrounding circumstances and find out whether the property received by Arku Ram by the medium of the said gift was the separate property or ancestral in his hands qua his male issue. The gift-deed recites :

7. The intention of the donor is clear that she wanted to confer on the donee the same rights in the property and to impose upon him the same obligations which would have arisen if the property would have been inherited by Arku Ram from Ram Chandra, in due course of inheritance according to the Mitakshara Hindu Law. She did not confer rights of an absolute owner. On the other hand, what she conferred by the gift deed was the right to remain in proprietary possession of the property and to enjoy its income. The estate conveyed by this document, in the property, was the estate ordinarily enjoyed by the Karta of a Hindu joint family in coparcenary property.

8. On a true construction of the said gift deed Ex. A-1, the irresistible conclusions that the property received by Arku Ram was ancestral in his hands. The result is that the plaintiff's share in the property is 9/40 and not merely 1/8.

9. With regard to the finding of the lower appellate court on points Nos. 13 and 14 imposing the liability for payment of Rs. 1,062.50 P. on the plaintiff to be adjusted from his share, no ground of objection has been raised in the memorandum of appeal, nor did the defendant-respondents' counsel address any arguments before me on the cross-objection filed by them with regard to the amounts of cash, ornaments and clothes left by Arku Ram, or the loan of Rs. 1,500/- owed by him at his death, obviously because these findings relate to the realm of facts and no error could be pointed out therein.

10. In the result, the appeal succeeds and is allowed. The judgment and decree of the lower appellate court in so far as it declares the share of the plaintiff-appellant in the movable and immovable properties to be 1/8 instead of 9/40, are set aside, and it is declared that the share of the plaintiff-appellant in all the properties in suit was 9/40 of the whole, as decreed by the trial court. However, the decree of the lower appellate court declaring the plaintiif-appellant liable to pay Rs. 1,062.50 P. by adjustment of the same against the value of his share, is maintained. The plaintiff-appellant shall be entitled to his costs throughout and the preliminary decree passed by the trial court shall stand modified accordingly.